LEO #1629 ATTORNEY-CLIENT RELATIONSHIP; CONFLICTS; CONFIDENCES;
FORMER CLIENT; MEDICAL MALPRACTICE DEFENSE ATTORNEY
MOVING TO PLAINTIFF'S FIRM
You have presented a hypothetical situation involving Attorney M,
who entered law practice in September 1991 as an associate with Law
Firm A. Because he is also a physician, Attorney M worked almost
exclusively on defense of medical malpractice cases. You indicate
that, along with the partner in charge of the medical malpractice
section, Attorney M was an attorney of record in about twenty-five
cases and peripherally involved in about twenty-five other cases
handled by Law Firm A. Attorney M had no involvement in about one
hundred other cases.
You advise that, from February 1993 until October 1993, Attorney M
was employed as a claims consultant for Insurance Company X as an
administrator and manager who assigned medical malpractice cases to
defense attorneys and followed the cases' progress. Although
Attorney M was familiar with the facts of the cases, he was rarely
privy to conversations between the doctors and the defense
attorneys. Attorney M did not practice law during that period, and
there was no attorney-client relationship between Attorney M and
the doctors or Insurance Company X.
You indicate that Attorney M was paid a fixed salary by Insurance
Company X, did not carry legal malpractice insurance during his
employment by Insurance Company X, and was instructed by his
supervisor that his responsibilities were the same as the other
claims employees who did not have a law degree and that he was not
to practice law.
In November 1993, Attorney M returned to the practice of law with
Law Firm A as a senior attorney and functioned as a consultant in
medical/legal issues. You indicate that M's duties included
medical/legal research, advice on specific issues in cases,
occasional doctor/defendant interviews, occasional depositions of
plaintiff expert witnesses, and securing defense expert witnesses.
In this consultant capacity, M was not an attorney of record in any
current cases defended by Law Firm A and was not an attorney of
record in any case since February 1993.
You indicate that, in January 1995, Attorney M will join Law Firm
B as a plaintiff's attorney and expects to bring suits against
doctors and hospitals for medical malpractice. Attorney M will
only be involved in medical malpractice cases; there are no medical
malpractice cases being handled by Firm B at this time. Finally,
Firm B does not have any active medical malpractice cases against
clients of Firm A.
You have asked the committee to opine, under the facts of the
inquiry, as to several questions regardng Attorney M's future law
practice with Law Firm B.
The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 4-101(B) which provides, in pertinent part, for the
preservation of client confidences and secrets; and DR 5-105(D)
which provides that a lawyer who has represented a client in a
matter shall not thereafter represent another person in the same or
substantially related matter if the interest of that person is
adverse in any material respect to the interest of the former
client unless the former client consents after disclosure.
The committee opines relative to the facts presented as follows:
1. As to whether Attorney M would be precluded from representing
a patient plaintiff in a medical malpractice action against a
doctor, if Attorney M had been involved as an attorney, while
with Law Firm A, with the defense of that doctor in a previous
medical malpractice case, the committee is of the opinion that
Attorney M would be so precluded from undertaking such
representation. The committee believes that the
representation of the plaintiff would be substantially related
to the former representation
of the doctor. The committee is of the view that both
representations involve the same doctor whose professional
competence is at issue in both suits. Further, the possession
of confidential information may be imputed to Attorney M based
upon his having earlier participated in the defense of the
doctor in a previous malpractice action. See LEO #1568.
2. As to whether Attorney M would be prohibited from representing
a patient plaintiff against a hospital, clinic, and/or
professional corporation which was named as co-defendant along
with the doctor, if Attorney M was involved in the defense of
the doctor and hospital, clinic and/or professional
corporation, the committee is of the opinion that Attorney M
would likewise be precluded from such representation for the
reasons stated above.
3. The committee is of the view that it would not be improper,
under DR 4-101(B), for Attorney M to represent a patient
plaintiff against a doctor who had been earliuer represented
by Law Firm A while Attorney M was associated with the Firm,
provided that Attorney M did not work on the doctor's defense
and did not receive any confidential information from the
doctor.
4. Since the facts indicate that Attorney M managed and
administered claims for Insurance Company X, but was was
specifically instructed not to practice law, the committee
believes that no attorney-client relationships were
established between M and the insured doctors whose claims he
handled. Thus, the committee is of the opinion that, since no
such relationship arose between M and the doctors, the
doctors' claim information would not constitute a confidence
or secret under DR 4-101. See LEO #1536. Therefore, the
committee opines that Attorney M would not be prohibited from
representing a patient plaintiff against a doctor whose claim
was managed and administered by M while he was employed by
Insurance Company X.
[DRs 4-101(B), 5-105(D); LEO 1536, 1568]
Committee Opinion
February 7, 1995